February 20, 2014
EDDIE NALLS, Appellant
CORRECTIONS OFFICER E. MILLER, Appellee
Appeal from the Order July 30, 2013, Court of Common Pleas, Cambria County, Civil Division at No. 2012-0429
BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and PLATT [*] , JJ.
Appellant, Eddie Nalls ("Nalls"), appeals the trial court's order dated July 30, 2013, which granted the preliminary objections of Appellee, Corrections Officer Eric Miller ("CO Miller"), and dismissed Nalls' Amended Complaint. For the reasons that follow, we affirm the trial court's order.
In his Amended Complaint, Nalls alleged that on May 12, 2011, he was incarcerated at SCI-Cresson. Amended Complaint, 1/20/2013, at ¶ 12. Nalls was located in the large yard when a brutal inmate-on-inmate attack occurred (not involving Nalls), resulting in an institutional lockdown at the facility. Id. at ¶ 15. The prison staff was instructed to conduct cell and strip searches of the inmates to confiscate contraband and weapons. Id. at ¶ 18. According to the Amended Complaint, the strip searches on the day in question (other than Nalls') were all conducted in the following manner: one cellmate would be ordered to exit and the other would be alone in the cell with the guard; with the cell door closed, the inmate would then strip and hand his clothes to the guard; the inmate would then brush his hands through his hair, open his mouth wide, raise his arms, then lift his genitals and bend over spreading his buttocks exposing his anus. Id. at ¶ 19. The strip search then completed, that inmate would exit and the other inmate would enter for the same procedure. Id.
According to Nalls, his strip search on May 12, 2011 was conducted differently. CO Miller allegedly entered Nalls' cell and ordered him to strip down without first directing his cellmate to exit. Id. at ¶ 25. Nalls contends that at this time he requested that his cellmate exit and that the cell door be closed before he disrobed, but that CO Miller threatened that he would be sent to the "fucking hole" if he did not disrobe immediately. Id. at ¶ 25-26. Nalls alleges that he was thus forced to finish the strip search with his cellmate still present and the cell door "completely agape." Id. at ¶ 27. According to Nalls, this resulted in embarrassment and humiliation since he was required to expose himself "with a female staff and other inmates known to be in the immediate area and/or vicinity with the cell lights emitting." Id. at ¶ 32.
In the Amended Complaint, Nalls set forth three causes of action. First, pursuant to 42 U.S.C. § 1983, Nalls claims that CO Miller's actions constituted an unreasonable search and violated his constitutional rights under the Fourth and Fourteenth Amendments to the United States Constitution and Article I, Section 8 of the Pennsylvania Constitution. Id. at ¶ 56-57. Second, Nalls contends that CO Miller's actions constituted an intentional tort of battery. Id. at ¶ 58-61. Third, Nalls alleges that CO Miller treated him differently during the strip search procedure and thus violated his constitutional right to equal treatment under the law pursuant to the Fourteenth Amendment to the United States Constitution and Article I, Section 26 of the Pennsylvania Constitution.
On March 15, 2013, CO Miller filed preliminary objections in the nature of demurrers to Nalls' Amended Complaint. By an opinion and order dated July 30, 2013, the trial court sustained the preliminary objections and dismissed Nalls' Amended Complaint. This appeal followed, in which Nalls raises the following two issues for our consideration and determination:
1. Whether [Nalls] stated a claim that [CO Miller] violated [Nalls'] state and federal constitutional rights when [CO Miller] conducted [Nalls'] strip search in an abusive manner and in a place in view of other inmates and a female prison counselor?
2. Whether [Nalls] stated a claim that [CO Miller] violated [Nalls'] state and federal constitutional rights to equal protection when [CO Miller] intentionally strip searched [Nalls] differently from that of similarly-situated individuals without rational basis for the difference in the treatment?
Nalls' Brief at 4.
Our standard of review from an order sustaining preliminary objections in the nature of demurrers is as follows:
[O]ur standard of review of an order of the trial court overruling or granting preliminary objections is to determine whether the trial court committed an error of law. When considering the appropriateness of a ruling on preliminary objections, the appellate court must apply the same standard as the trial court.
Preliminary objections in the nature of a demurrer test the legal sufficiency of the complaint. When considering preliminary objections, all material facts set forth in the challenged pleadings are admitted as true, as well as all inferences reasonably deducible therefrom. Preliminary objections which seek the dismissal of a cause of action should be sustained only in cases in which it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish the right to relief. If any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the preliminary objections.
Richmond v. McHale, 35 A.3d 779, 783 (Pa. Super. 2012) (quoting Feingold v. Hendrzak, 15 A.3d 937, 941 (Pa. Super. 2011)).
For his first issue on appeal, Nalls contends that the trial court erred in dismissing the first count of the Amended Complaint, which purports to state a claim for an unconstitutional strip search. Id. at 10. Prison inmates do not enjoy the full array of Fourth Amendment protections,  as the restrictions placed on constitutional liberties within the walls of prisons "must be evaluated in the light of the central objective of prison administration, safeguarding institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979). Courts give deferential treatment to the policies and practices of prison administrators. Powell v. Barrett, 541 F.3d 1298, 1314 (11th Cir. 2008). Prison policies are clothed in a presumption of reasonableness, and "the need for a particular search must be balanced against the resulting invasion of personal rights." Florence v. Bd. of Chosen Freeholders of Cnty. of Burlington, 132 S.Ct. 1510, 1516 (2012).
The United States Supreme Court has made clear that "given the realities of institutional confinement, " prison inmates have a highly diminished reasonable expectation of privacy. Bell, 441 U.S. at 557. Inmates have no Fourth Amendment protections against unreasonable searches of their cells. Hudson v. Palmer, 468 U.S. 517, 526 (1984). With respect to strip searches of their persons, the Supreme Court has fashioned the following four-factor test to consider inmates limited Fourth Amendment protections:
The test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application. In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.
Bell, 441 U.S. at 557; Allison v. GEO Group, Inc., 611 F.Supp.2d 433, 448 (E.D. Pa. 2009) (the Bell test still applies to consideration of legality of custodial strip searches).
Applying this four-part test confirms that the trial court did not err in sustaining CO Miller's demurrer on this claim. The first factor, the scope of the intrusion, weighs in CO Miller's favor. The strip search of Nalls was visual only and there are no allegations that it involved any touching of Nalls' body. In Bell, the Supreme Court concluded that a visual search substantially identical in nature to the one described in detail in Nalls' Amended Complaint was constitutional:
Admittedly, this practice instinctively gives us the most pause. However, assuming for present purposes that inmates, both convicted prisoners and pretrial detainees, retain some Fourth Amendment rights upon commitment to a corrections facility, we nonetheless conclude that these searches do not violate that Amendment. The Fourth Amendment prohibits only unreasonable searches, and under the circumstances, we do not believe that these searches are unreasonable.
We do not underestimate the degree to which these searches may invade the personal privacy of inmates. … But we deal here with the question whether visual body-cavity inspections as contemplated by the MCC rules can ever be conducted on less than probable cause. Balancing the significant and legitimate security interests of the institution against the privacy interests of the inmates, we conclude that they can.
Bell, 441 U.S. at 558-60; Michenfelder v. Sumner, 860 F.2d 328, 332 (9th Cir. 1988) ("so long as a prisoner [is] presented with the opportunity to obtain contraband or a weapon while outside of his cell, a visual strip search has a legitimate penological purpose").
With respect to the second and fourth Bell factors, the manner in which the strip search was conducted and its location, Nalls alleges that CO Miller used "excessive means to enforce and achieve the underlying security objectives." Nalls' Brief at 12. Specifically, Nalls contends that CO Miller conducted the strip search in the presence of his cellmate and in a location (because of the open cell door) where it could also have been viewed by other inmates and a female prison counselor.
Some federal courts have recognized that prison inmates have a "limited constitutional right to bodily privacy, " based upon a "special sense of privacy in their genitals" and that "involuntary exposure of them in the presence of people of the other sex may be especially demeaning and humiliating." Fortner v. Thomas, 983 F.2d 1024, 1030 (11th Cir. 1993); Byrd v. Maricopa County Sheriff's Dept., 565 F.3d 1205, 1222 (9th Cir. 2009) ("the desire to shield one's unclothed figure[ ] from view of strangers, and particularly strangers of the opposite sex, is impelled by elementary self-respect and personal dignity"), reversed on other grounds, 629 F.3d 1135 (9th Cir. 2011)..
A review of cases in this area, however, suggests that this right to bodily privacy is extremely limited and has been recognized only in severe instances. Fortner, for instance, a case cited by Nalls in support of his claim, involved allegations that female guards not only were routinely permitted to observe male prisoners while showering and using the toilet, but also flirted with them and solicited or aroused them into displaying their genitals and/or masturbating. Fortner, 983 F.2d at 1027. In Byrd, the strip search involved a female trainee cadet touching the genitals of a partially clothed inmate in front of 25 to 30 other cadets and 10 to 15 uniformed detention officers (while the episode was being videotaped). Byrd v. Maricopa County Sheriff's Dept., 629 F.3d 1135, 1136-37 (9thCir. 2011). In Sepulveda v. Ramirez, 967 F.2d 1413, 1415 (9th Cir. 1992), a male prison guard entered the bathroom stall of a partially unclothed female prisoner and refused to leave upon her request.
Federal courts have emphasized that these types of claims should be evaluated on a case-by-case basis. Padgett v. Donald, 401 F.3d 1273, 1279 (11th Cir. 2005). In this case, Nalls alleges only that his cellmate observed his strip search and that the cell door was left open, leaving the possibility that it could have been viewed by others (including one female prison counselor). In our view, while CO Miller's alleged refusal to close the cell door made the visual strip search more invasive than may have been strictly necessary, it does not raise this incident to one of constitutional proportions resulting in a violation of Nalls' Fourth Amendment privacy rights. See, e.g., Shaw v. Freeman, 1991 WL 225010, at *5 (E.D. Pa. October 29, 1991) (the inadvertent, momentary exposure of one's genitals to a corrections officer of the opposite sex at the end of a reasonable penological strip search does not amount to a constitutional violation); Grummett v. Rushen, 779 F.2d 491, 495–96 (9th Cir. 1985) (pat-down searches of male inmates that included the momentary touching of groin area by female guards do not violate Fourth Amendment); Michenfelder v. Sumner, 860 F.2d 328, 334 (occasional visual strip searches of male inmates by female guards do not violate Fourth Amendment); Cookish v. Powell, 945 F.2d 441, 448–49 (1st Cir. 1991) (visual body cavity searches, some of which were conducted in view of guards of the opposite sex, did not violate clearly established rights where searches were conducted in response to what plaintiff conceded was an emergency situation).
Nalls does not contest that the third Bell factor, the justification for the strip search, weighs strongly in CO Miller's favor. In his appellate brief, Nalls concedes that the cell and strip searches "were necessary and reasonable to locate and recover contraband and weapons." Nalls' Brief at 13. Nalls further agrees that the "strip search of Nalls' person, as a whole, was justifiable as it was reasonably related to its legitimate penological interest, namely to protect other prisoners and staff members by detecting and recover[ing] contraband and weapons." Id.
Considering all of the Bell factors, the trial court did not err in dismissing the first count of the Amended Complaint. As explained above, even accepting the allegations in the Amended Complaint as true, as our standard of review requires, CO Miller's conduct does not constitute a clear violation of Nalls' privacy rights against unreasonable searches under the state and federal constitutions.
For his second issue on appeal, Nalls argues that the trial court erred in dismissing the third count of his Amended Complaint, which purports to assert a claim for a violation of his right to equal protection under the state and federal constitutions. The basis for Nalls' equal protection claim is the same as for his Fourth Amendment claim, namely that his strip search was treated differently from other similarly situated inmates. Nalls' Brief at 15.
Nalls does not contend that he is a member of any suspect classification, but rather proceeds under a "class of one" theory. To state a claim under a "class of one" theory, the plaintiff must at a minimum allege that: (1) the defendant treated him differently from others similarly situated; (2) the defendant did so intentionally; and (3) there was no rational basis for the difference in treatment. Phillips v. Allegheny County, 515 F.3d 224, 243 (3d Cir. 2008) (citing Village of Willowbrook v. Olech, 528 U.S. 562, 565 (2000)). In this case, Nalls' Amended Complaint fails to satisfy the second requirement, that CO Miller intentionally treated him differently. The Amended Complaint alleges only that the strip searches of other inmates were conducted in one way while that of Nalls differed in certain respects. Amended Complaint, 1/20/2013, at ¶ 19, 38. The Amended Complaint contains no allegations, however, to establish that CO Miller intentionally strip-searched Nalls differently from the strip searches conducted on all of the other inmates. Nalls does not allege that CO Miller knew how other inmates were strip-searched on the day in question (e.g., with cell doors closed), or that his strip search of Nalls differed in any material respects. While Nalls attached as an exhibit to the Amended Complaint what appears to be an excerpt from a policy manual regarding procedures for strip searches, it provides only general instructions stating that they should be conducted "in an area separate from other inmates and to assure privacy and minimum embarrassment." Id. at Exhibit A. It contains no specific instructions, however, prohibiting strip searches in cells, requiring other cellmates to be removed, or commanding that cell doors must be shut throughout the process. As such, even if Nalls had alleged that CO Miller knew about the policies in Exhibit A (which he does not), this still would not establish the sort of intentional differential treatment required to state a cause of action under the "class of one" theory for equal protection claims.
At most, Nalls has alleged a mere inconsistency in prison management or practice. As courts have emphasized, however, such an allegation is not one that "in itself constitute[s] a cognizable equal protection claim." Evatt v. Thomas, 99 So.3d 886, 890-91 (Ala.Civ.App. 2012); Durso v. Rowe, 579 F.2d 1365, 1372 (7th Cir. 1978). Accordingly, we conclude that the trial court did not err in dismissing Nalls' equal protection claim in this case.